Occupy Melbourne, Your speakers: Street Preachers Sky Mykyta and - - PowerPoint PPT Presentation

Your speakers:

Sky Mykyta

Managing Principal Solicitor

Nicholas Tiverios

Solicitor

Occupy Melbourne, Street Preachers and Hate Mail

Recent Developments in the Implied Freedom of Political Communication

What we will cover today

• What is the Implied Freedom?
• Occupy Melbourne: Muldoon’s case
• Street preachers: Corneloup’s case
• Hate mail: Monis’s case
• Lessons for drafters and decision-makers
• Can we help you?

What is the Implied Freedom?

• A limit on legislative power not a personal

right

• The Lange test:
• 1. Does the law burden free communication?
• 2. Is the law directed to a legitimate end

compatible with representative and responsible government?

• Balancing exercise at stage 2 of the test: are the

means chosen reasonable?

Occupy Melbourne: Muldoon’s case

• Protestors wanted to continuously occupy

Treasury and Flagstaff Gardens

• Local Law and Regs prohibited camping

without a permit

• Permit denied and notices to comply issued
• Action for injunctions in Federal Court
• Laws breach Constitution & Charter Act?

Muldoon’s case

• First Lange question:

– the Laws did burden free communication – Was it an effective burden? Much was not prohibited

• Second Lange question:

– Legitimate end: protection and equitable use of gardens – Balancing of legitimate end and means chosen

• Laws valid: a win for reasonable regulation!
• Muldoon & Kerrison have appealed to the Full

Federal Court

Street preachers: Corneloup’s case

• Corneloup brothers – street preachers
• City of Adelaide by-law prohibited persons

from preaching or distributing printed matter on any road to any bystander or passer-by without permission

• Exceptions for elections, Speakers Corner
• Reasonable means of regulating public

space

Corneloup’s case

• Laws did burden free communication
• Legitimate end: The legitimate purpose

concerns the safety and convenience of users of the road

• Confined geographically, unsolicited

communications only, permission regime, speakers corner, political exception

• Laws valid: win for reasonable regulation

Hate mail: Monis’s case

• The appellants allegedly sent letters to

relatives of several soldiers killed in action

• Each communication conveyed views

about a controversial political matter

• s 471.12 Cth Code makes it a crime to use

a postal service in a way that reasonable persons would regard as being menacing, harassing or offensive.

Monis’s case

• Laws did burden free communication
• Legitimate end: prevent an intrusion of

seriously offensive material into a person’s home or workplace (3 Justices dissenting)

• Seriously offensive content only, fault

requirements, incidental burden

• Laws valid: another win (just) for

regulators

Lessons for drafters and decision-makers

• Principle of legality – what is within power?
• Powers can be drafted to comply with

constitutional limits

• OR broad powers read down
• Freedom of communication not absolute –

balanced with other legitimate ends

Lessons for drafters and decision-makers

• Can’t immunise all decisions from

challenge but can put best defence

• Evidence of good-decision making
• In general – policies, guidelines, training of

decision-makers

• For specific decisions – reasons, special

instructions

Can we help you?

• Advice on

– drafting/construing legislative powers – policies and guidelines – reasons for decisions

• Training for decision-makers